Anwar et al v. Fairfield Greenwich Limited et al

Filing 1069

ENDORSED LETTER addressed to Judge Victor Marrero from Sharon L. Nelles dated 3/04/2013 re: We write on behalf of the Standard Chartered Defendants ("Standard Chartered") in response to the February 28, 2013 letter from the Standard Chartered Plaintiffs' Steering Committee requesting a discovery conference to discuss plaintiff's requests for admission. ENDORSEMENT: The Clerk of court is directed to enter into the public record of this action the letter above submitted to the Court by Standard Chartered Defendants. SO ORDERED. (Signed by Judge Victor Marrero on 3/06/2013) (ama)

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The Honorable Victor Marrero,
United States District Judge,
Daniel Patrick Moynihan UniL~u. Slate:) Courthouse.
500 Pearl Street,
New Vork. New York lO007.

Re:

Anwczr v. Fairfield Greenwich Ud.,
No. 09-CV-IIB (S.D.N.Y.'! -- Stal'1dard Chartered Cas\!s

Dear Judge Marrero:

We write on behalf of the Standard Chal1ered Defendants ("Standard
Chartered") in response to the Fehruary 28, 2013 letT.er from the Slandi:lrd Charlt:red
Plaintiffs' Steering Committee requesting a discovery confcrcnc.e to discuss plainti11S'
requestc; fOl' admission. I
Fact discovery in the Sttmdard Chartered Cases closed on May 4, 2012.
On January 24,2013, plaintiffs served 276 individually-numbered requests tor admission.
On Febluary 28, 2013, plaintiff Headway Investmenl Corporation ("Headway") served an
addilional 65 requests for admission.:1. Standard Chartered ohjects to these 34 J requests
for admission <L"i untimely, overly broad and unduly burdensome. St"'ndard Chartered
thus respectfully a.c;ks that the COU11: quash both sets of requests in their entirely.

By orders dated February 19,2009 and June 12,2012, the Court referred
all scheduling and discovery matters to Magistrate Judge Frank Maas. (ECF Nos. 50,
893.) Standard Chartert:d is providing a copy of this letter to Judge Maas. Both this
Court and Judge Maa." limit letters requesting a pre-motion conference to three pagt:s.
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IIeadway's counsel i:; a memher of the plaintiffs' Steering Committee.
Plaintiffs did not indicate why they did nol cuordinate th~ir discovery efforts as required
by the Second Amended Scheduling Order Rt:garding Slandard Chartered Cases. (ECF
No. 602. '14.) Standard Chartered will provide a copy of the Headway requests for
admi!i!iion at Lhe CourL's request.

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Tht: llonorable Victor Marrero

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As plaintiffs acknowledge, Your llonor pn::viou:-;ly ruled 011 the very
question on which thcy seek guidance. (Pis.' Letter at 6.) In Fournier v. Erickson, 242
F. Supp. 2d 318,334 (S.D.N.Y. 20(3), the Court declined to require a responst: to
rcqu~~l~ ror admission served aft.er the close of discovery because the reql,lCsl!'i w~re "not
timely made." t\~ the COUll explained, "[r]equests for admissions pursuant to Rule 36 of
the Federal Rules of Civil Procedure are generally bound by facl di!'icov~ry deadlines."
fd. {citing cases}. Fournier is entirely eonsislt:nl wilh oLher recent decisiol1~ in this
Circuit. 3 Indeed, several cOUl1s have ruled lhl:l.l rcque!'il!'i Ie)}' admission must be
propounded far enough in advance of the discovery cut-off s\lch th..1t responses arc due
before discovery cnds. 4
Plaintiffs cite two cases from this Dislricllhal address untimely requesls
for admission, ncilhl:r 01" which support." plaintiffs' service of requests for admission
more than eight months after the clo~e of tact discovery. In Revlon Cunsumer j'roducts
Corp v. Estee Lauda Cos., No. 00 eiv. 5960 (RJl..fB) (AJP), 2001 WL 521832, al *1
(S.n.N.Y. May 16,2001) (PIs.' Letter at 7). the court pennilled requests that had been
served 29 days before the close of fact discovery due to a messenger'S failure to pick
them up on the prior bu:-;iness day. Tn Greenfield v. Memorial Sloan Kettering Hospilal,
No. 1)5 Civ. 7658 (KTD), 2000 WL 351395. at +4-+) (S.D.N.Y. Apr. 5,2000) (Pis.'
L~ller al4), the court permitted requests for admission served 40 days after the close or

See Katz v. MORuS, No. 07 Civ. 8314 (PKC) (KNF), 2010 WL 1140873,
at +2 11.4 (S. n.N. Y. Mar. 18, 2010) (requcsts for admission served 18 days after close of
discovery were untimely): Stephanski v. Arnone, No. 04-CV-552A, 200R WL 413301
at *4 (W.D.N.Y. Feb. 13. 2008) (d~dining lo allow untimely requests tor admi~~ion 01'
treat them "as a request to extend the dis(.;()vc:ry deadline"); 8rodeur v. }.1cNamee, No.
3:02-CV-R2J NAMIDEP, 2005 WL 1774033, at *2 (N.D.N.Y. July 27. 2005) CTf]hc
majorilY or court:-; which have addressed the precise issue now presented hav~ concluded
that requests for admissiol'ls shotl1d be subject to case management discovery dcadlim:s. ")
(collecting cases). See also 7 James W. Moore, MOORE'S FEDERAL PRACTICE § 36.02l2J,
at 36-11 (3d ed. 2000) ("Generally, the limitations and deadlines applicable lo olh~r
discovery devices also apply to requests for admissions."): 8B Wright, Miller, Kane &
Marcus, FED. PRAC. & PROC. elV. § 2257 (3d ed.) ("lRJequeSl!'i li)r admissions have been
held subjec1lo discov~ry culo!l' dales."); 2 Michael C. Silberberg, CIVIL PRAC"I'll'1.! IN TIIU
SOUTHERN D1STR1CTOpNEWYOI<K § 23.04, o.t 23-6 (2d ed. 2001) ("Even though they
are not 3 discovery device, requests for admission must nonethcless be served before lh~
discovery cut-off. ") (citing cases).
4

S{!e Joseph l.. v. Conn. Dept. ofChildren & Families, 225 F.R.D. 400,

402-03 (D. Conn. 2005) (collecLing cases and barring requests for admission served olle
day before close ofdlscovery); Millenium E-rpre.\'sion.\'. file v. Chauss Mklg. Lrd., No. 02
Civ. 7545 (KMB) (JC1;), 2003 WL 22853043, at· 1 (S.D.N.Y. Nov. 7,20(3) (barring
rcquc~ls lor admi!l!iion served two days before close of discovery).

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The Honorable Victor Marrero
discovery, in large part because the requests were based on a uocumenl received two
week~

hefore the close of fact discovery. Even 11' Re)llrm and Greenfield carved out a
narrow exception for requests for admis::;ion served very near the close of fact lli~covery.
that exception would not apply here.

Lastly, plaintiffs assert: that their requests seek to "streamline and
eliminate facts" or "authenticate and permit admission of likdy (;;xhibil::i at trial." (PIs.'
Le:!LLer aL 4.) That stated goal "does not lead to the conclusion that lrequesLs fbr
admission] may he utili7.ed in n wholesale fashion ailer discovery has been closed."
Bailey v. Eroder, No. 94 Civ. 2394 (CSH) (S£G), 1997 WL 752423, at *3 n.3 (S.D.N.Y.
Dec. 5, 1997) (striking 237 untimely rcquesL"i [tlr admi~.sion):~ R.1ther, should these cases
proceed to trial, the parties undoubtedly wiJI- on a reciprocal basis and at the appropriate
time - idenlily th~ triahle:! issues, de!:>ignate trial exhibits, and address qllestions of
admissibility . •)'ec FED. R. Clv. P. \6(e). That is exactly what this COllrl'~ lrial
procedures rcquin; liS ptil"t or tiny joint pretrial Qrder. Ii Standard Chartered thus
respectfully rcquc~ts that the Court quash both the requests for Cldmi5sion served by the
Steering Committee anu those served separntely by Headway.
Respectfully submitted,

-,.cc:

_ ~t i7~/"~i
Sharon L. Ndh;:;

I

~

The Honornble Frank Maas (by Facsimile)
Richard F. RH.ld~ky (by Facsimile)

Standard Charlered Plaintiff~' Steering Committee (hy E-mail)

Plaintills Jev()le much of their letter to the debate over whethel' req\.lests
tor admission are true "discovery devices," (PIs.' Letter at 2.) This Court's Local Civil
Rule 5.1 specifies that requests for admission are "Discovery Materials." The structure
of the federnl11.l1es, the Advisory Committee Notes for Rule 36. and lht:: applicability of
Rl.Iles 2G and 37 to requests for admission also leave "no doubt" thal r~qu~sL" f()r
admission "are a discovery device." Rev/on) 2001 WL 521832, nt·1. But whether lhey
are "Ii:;h or fowl" (PIs.' Letter at 5), plaintiffs' requests are undeniably a meal served late,
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See Trial Procedures of U.S. District Judge Victor Marrero

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